United States v. Mendez

United States District Court, D. Nebraska

September 19, 2017

UNITED STATES OF AMERICA, Plaintiff,v.ADRIAN MENDEZ, Defendant.

MEMORANDUM AND ORDER

Joseph
F. Bataillon Senior United States District Judge

This
matter is before the court after hearings on an Amended
Petition for an Offender Under Supervision (“Amended
Petition”), Filing No. 92, and on the defendant's
oral motion for a provisional sentence and commitment to a
suitable facility under 18 U.S.C. § 4244(d).

I.
BACKGROUND

The
defendant had appeared before the undersigned on June 29,
2017, and admitted to Allegation No. 3 of the Amended
Petition-a violation of Special Condition #4 which states,
“[t]he defendant shall attend, pay for and successfully
complete and diagnostic evaluations, treatment or counseling
programs, or approved support groups (e.g. AA/NA) for alcohol
and/or controlled substance abuse, as directed by the
probation officer.” Filing No. 99, Minute entry. At
that hearing, the parties discussed the need for a
psychiatric evaluation of the defendant and the hearing was
continued in order to obtain an evaluation. Id.

On
September 13, 2017, the defendant appeared before the
undersigned and again admitted to Allegation No. 3 of the
Amended Petition. The court found the defendant competent to
enter that admission, found the admission was free and
voluntarily, and accordingly, accepted the admission. Before
sentencing, the defendant orally moved for a provisional
sentence under 18 U.S.C. § 4244(d).

Matthew
Huss, a forensic psychologist, conducted a psychiatric
evaluation of the defendant and submitted a Forensic
Evaluation to the court. He found Mendez met the criteria for
schizoaffective disorder-bipolar type and antisocial
personality disorder. In addition, he found Mendez met
criteria for stimulant use disorder, severe, and alcohol use
disorder severe by history. In the report, Dr. Huss found
Mendez presented a high risk of violence toward others given
his near universal endorsement of the most relevant
historical, clinical and future risk factors, but noted the
risk could be better managed with treatment for his mental
illness.

The
defendant has a history of threatening behavior and attempts
to harm himself and others. He also has a clear history of
suicidal ideation and suicide attempts. He was placed on
suicide watch numerous times while in prison and admitted to
recent self-injurious behavior in that he repeatedly hit his
head on the wall while in custody for the present violation.
In his report, Dr. Huss concluded, based on the results of
testing and the defendant's behavior during the current
incarceration, that the defendant is at moderate risk for
self-injurious behavior for two to three months, until his
medication takes full effect.

While
in the custody of the Bureau of Prisons on his underlying
offense, the defendant had a number of mental health issues,
from auditory hallucinations and frequent laughing to
diagnoses of depression, adjustment disorder and bipolar
disorder. Dr. Huss assessed the defendant in two interviews.
He also administered several objective tests, one of which
indicated Mendez was not exaggerating his mental health
symptoms during the second interview.

Dr.
Huss concluded that, although the test results suggested some
level of exaggeration, any exaggeration or malingering
appears to diminish with improvement in Mendez's mental
health symptoms. Dr. Huss also evaluated the defendant's
competency and concluded that overall Mendez was competent to
stand trial under federal standards.[1]

At the
hearing, Dr. Huss testified that he believed Mendez needs
inpatient treatment for several months. He explained that
Mendez's diagnosis of schizoaffective disorder meant that
Mendez has some schizophrenic or psychotic-like symptoms and
also some affective or mood-disorder symptoms. With respect
to the psychotic part, Mendez suffers from hallucinations,
delusions and disordered thinking. Dr. Huss testified those
symptoms could be treated with medication, but it would take
eight to ten weeks on the proper medication to get Mendez
clinically stable enough to treat. After treatment, Mendez
would need a supportive living arrangement and continued
supervision. He testified Mendez was an especially
challenging case because his mental health symptoms
contribute to the substance abuse, he has exaggerated his
symptoms in the past and is likely to do so in the future,
and he has some antisocial tendencies once he is properly
medicated.

II. Law

Federal
law provides for hospitalization of a convicted person
suffering from a mental disease or defect. 18 U.S.C. §
4244(d). “Under 18 U.S.C. § 4244(d), a defendant
with a mental disease or defect may receive a provisional
sentence and be committed for treatment prior to his final
sentencing and incarceration.” United States v.
Smith, 464 F.App'x 179, 181 (4th Cir. 2012). The
current framework of 18 U.S.C. § 4244 “helps to
meet several governmental interests that are distinct from
questions of competency, namely, ‘the governmental
interests in: (1) protecting mentally ill prisoners who might
be at substantial risk if placed in the general prison
population; (2) ensuring the safety of other inmates; and (3)
providing humanitarian treatment for mentally ill
inmates.'” United States v. Jensen, 639
F.3d 802, 805-06 (8th Cir. 2011) (quoting United States
v. Abou-Kassem, 78 F.3d 161, 165 (5th Cir. 1996)). Under
§ 4244(d), if, after a hearing, “the court finds
by a preponderance of the evidence at the hearing that the
defendant is suffering from ‘a mental disease or defect
and that he should, in lieu of being sentenced to
imprisonment, be committed to a suitable facility, ' the
court is to impose a ‘provisional sentence . . . to the
maximum term authorized by law for the offense for which the
defendant was found guilty.'”[2]Jensen,
639 F.3d 802, 805 (8th Cir. 2011) (quoting 18 U.S.C. §
4244(d)). The court is instructed to commit the defendant to
the custody of the Attorney General. 18 U.S.C. §
4244(d).The Attorney General is then to
“hospitalize the defendant for care or treatment in a
suitable facility.” Id.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&ldquo;If,
at a later date, the director of a facility to which a
defendant is provisionally sentenced certifies that the
defendant no longer suffers from the mental disease or
defect, then the defendant may proceed to final
sentencing.&rdquo; Jensen, 639 F.3d at 805 (citing
18 U.S.C. § 4244(e)). At that time, if the provisional
sentence imposed under subsection (d) has not expired, ...

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